SUPREME COURT.

Evening Star, Issue 3720, 25 January 1875, Page 2

SUPREME COURT.

CIVIL SESSIONS.

Monday, January 25. (Before his Honor Mr Justice Chapman and a Special Jury.)

Irvine y. Morrison and others. — This was an action to recover L 3,000. Mr Barton and Mr Macassey for the plaintiff—C. D. Irvine ;Mr Smith for the defendants—W. D. Morrison, J. Cormack, andNichol, claimholders at the Blue Spur. The plaintiff’s declaration alleged that he entered into an agreement with the defendant Morrison by which they jointly entered into a railway contract under the General Government ; that thereafter the other defendants became co-partners ; that it was agreed that all the parties should have equal shares in the profits, and Nichol and Cormack should contribute two-thirds of the necessary expenses of the work; that plaintiff was engaged by the defendants as their engineer, and to superintend the works, for which it was agreed that he should receive a salary of LSCP a-yoar during the progress of the works, or until January 1, 1875, when the agreement should cease; that on August 13, 1873. two or three mouths after the making of the last mentioned agreement, the defendants sublet their contract to Messrs D. and J. M'Kouzie at a very handsome profit,” the MTCenaieu undertaking not only to carry out the original coutiact in its integrity, but to do whatever work was required; that after subletting, the plaintiff’s superintendence of the works became unnecessary, whereupon the defendants requested the plaintiff to accept a lesser salary than LSOO a-year which he agreed to do ; a id by an agreement dated August 30, 1873’ plaintiff greed to surrender all his legal interest as a partner in the contract, aud to receive salary at the rate of L 250 a-year, payable in monthly instalments of L2O 16s Bd—he to be at liberty to purchase privately (which pieviously he had not been permitted to do), and to receive a quarter shar« of all profits, it being stipulated that there should be a division whenever there was Ll,ooo of profits in hand ; that all losses should be borne by defendants alone • that defendants had made breaches of their agreements in neglecting to pay the plaintiff LI 29 19s Bd, arrears of salary; in neglecting to pay plaintiff his quarter share of profits; in neglecting to make a division of profits when they had LI,OOO of the latter in hand, and in neglecting to keep proper books of accounts which should be open to plaintiff’s inspection. On the first two counts, L 3,000 damages were claimed; on the other, nominal damages, sufficient to carry cos‘s. The defendants paid into court L 67 10s, which they alleged was all that was duo to plaintiff in respect of salary, and said that on January 17, 1874 (the action having been commenced on the 7th of July following), they terminated plaintiff's engagement in consequence of his neglect of his duties. The plaintiff, by his replication, denies that notice of termination of bis engagement was ever received by him; and further, supposing it to have been received, that defendant by pontinping him in their employment, waived their right to complain of neglect. ftlr Macassey, in opening the plaintiff’s case, said that in 1873 Mr Irvine was professionally employed by defendants to make inquiries in connection with important mining'case of Clayton y. Morrison and .others, 'out of which an acquaintance sprang, culminating in an intimacy that afterwards induced the rations out of which resulted the present action. In the early pan of 1872 Irvine suggested to Cormack that his firm should tender for some of the railway contracts then open for competition but Cormack declined to entertain the proposal, on the ground of having engagements t lat engrossed all his time, and suggested that Morrison, his partner, should be communicated with. In consequence, a telegram was sent to Momson, at Lawrence, and he came to town had long interviews with Irvine, the re-' suit qf which was that Xrvine and he sent in a •joih.t tender for the Round Hill section of the Cluhha-Tuapeka Railway. Cormack and Nichol being partners’ of Morrison, it was undesirable that they should be included in the tender; therefore they became and were accepted as sureties for Irvine and Morrison, whoso tender of L 19,780 for the work was accepted by the Government, Afterwards Nichol and 'Cor- ; mack were admitted as partners in the ; contract, though to that proceeding ‘ there • was some demur on the part of Irvine whose scruples were overcome by its being agreed that he should receive a salary of LSOO a-year, and a quarter share of the profits. The deed to give effect to this understanding was at once signed by Irvine, Cormack, and Morrison, and was taken to Lawrence by one of the two last mentioned to get Nichol’s signature to it, but the latter declined to agree to giving a salary of LSOO a-year to Irvine, who ultimately agreed to auoept 1 250. After their tender was accepted, Irvine proceeded to look out for a sub-contractor who would carry on the works at a smaller price than what they w-ere tendered for, and relieve the original contractors from responsibility of outlay of money. He succeeded in getting Messrs t). and J. M'Kenzie to enter into a sub-contract to do all the original contractors, Irvine and Mbrrison, had agreed to do, for L 15,274 19s. This was a clear profit of L 4.505 la, plaintiff’s share of which would amount to LI, 126 5s 3d. But ihe parties estimated that the gross profits would he between L 5,000 and LC,OOO, os the M‘J£oazigs’ price was subsequent to any deductions that might bo made by the General Government, | while the original tender, being at a lump sum, • was not. Furthermore, the M'Kenzios agreed to 1 do extras for 80 per cent, of the prices allowed for them by the Government, which would give tfcu wigtuai cttoftabtbta a futtlftfr of

per cent. Plaintiff only claimed for salary up to the time of the commencement of this action. His claim for salary up to January 1875 might form the subject of proceedings hereafter. At this stage of Mr Macassey’s address, Mr Smith objected to the line of opening, and, after considerable argument, Mr Barton applied to amend the declaration, which Mr Smith opposed. His Honor decided to allow the 1 amendment on terms, viz., that the plaintiff pay the costs of the day ; the defendants to he allowed to plead de novo ; all moneys paid into Court to remain in Court; the costs of amendment to be paul by plaintiff, and the trial to be postponed. The Court then adjourned.